*1 ment of rent. Also the offer of March 14 was made Hospital’s representatives immediately raised after the question. Secoy the rent majority Hospital, its states “that the offer, appellee courtesy extended to when it was business compulsion hardly no under con- contractual to do so Hospital’s rights stitutes a waiver of the under To refer contract.” to the conduct as “business courte- analysis sy” more a seems conclusion than principles relevant facts and law. The fact is parties Secoy when two offers were made all were paid no or rent had for six aware been seven Hospital months. I not relieve le- would gal consequences they by suggesting of its actions only courtesy”. They legally a “business consti- were delinquency they tuted waiver not. did they Gateway’s I feel Since under the rider did, protected and the decree should be should be affirmed. I dissent. Eagbn
Mr. Mr. Justice Justice Jones join opinion. dissenting Terry Appeal. Appeal.
McKeiver 340“ *2 C. J., January
Argued 1970. Before Bell, Pomeroy, Roberts Cohen, Eagen, O’Brien, Jones, JJ, Baron her Charles H. with Cotton, H.
Irene for appellant. Schmidt, N. Harvéy him Charles H. Baron and with É. Farmer, Daniel for appellant. Schmidt, N. Harvey ' ' with him James Attorney, District Specter, Arlen and Richard Attorney, District Deputy Crawford, D. for Com- District Attorney, Assistant First Sprague, A. appellee. monwealth,
Opinion May Mr. Justice 1970: Roberts, Joseph McKeiver1 and Edward Terry2 are juvenile delinquents, having acquired that status upon findings 1 May appellant Joseph McKeiver, years then sixteen old, charged robbery, larceny receiving was goods with stolen juvenile delinquency petition. in a charge essence twenty thirty youths he some other taken some had twenty-five young teenagers. cents from three At the time the charges brought against him, appellant were had never been before gainful employment. arrested and had a record of 17, 1968,
When MeKeiver’s case was caUed for trial on October opportunity his counsel advised court that he had not had an pro- to discuss the ease with his client and was therefore unable to gave ceed. The court counsel five minutes to talk his client proceeded requested and then to hear case. Counsel and was denied the ato trial. testimony The Commonwealth’s evidence consisted of the of two gave alleged victims, following of the three who narrative *3 they companion playing events. While and a were Fairmount they suddenly being by Park, they pursued realized that were bicycles. twenty thirty boys by boys foot and three some on on bicycles boys a were on remained at distance whUe Two who army approached the three victims. the small third What the unclear, remaining boy point but the robbers on foot did refused, money. bicycle three One the victims on a demanded quarter. gave punched the a The bandit then rode thief was park guard by to a victims taken a station the three were off ques- where, preliminary passing few minutes of after a motorist patrol placed taken tioning, in a car and were the two witnesses' the Within minutes two victims the area. ride around a for boy they thought who was the robbed them— spotted someone whom Joseph to McKeiver. person out be turned that hearing alleged by given testimony victims at the the two The robbery gang the while the as a effort described One weak. was the alone. Both stated that thief acted the that testified other glasses, has worn since McKeiver them but on not have did robber bicycle gave robber his to another the that testified One childhood. robbery, bicycle away the rode a robber the that md that rode Both said robber a riding arrested. one when was yet event, that he identified one stated throughout the bicycle by walk. his distinctive robber given, for counsel McKeiver made was evidence After usually judge to to made similar a trial argument by Juvenile Court of Philadelphia that each had violated a law the Commonwealth.3 The Superior Court affirmed adjudications curiam per and we granted allocatur. Their a consolidated raise appeals single question: whether there is a constitutional to a trial in juvenile court. jury
Appellants argue that the Constitution of United States, especially interperited re Gault, 87 S. 1, Ct. 1428 and Duncan v. (1967) Louisiana, jury; story alleged eyewit- incredible, victims was unreliable, ness identification of children is facts and the had not proved beyond judge apparently been a reasonable doubt. The was unimpressed efforts; these he found McKeiver “delin- a quent placed probation. applied him child” and on McKeiver for refusing rehearing alleging him the court had erred by jury. petition Superior right to The was and the a trial denied per ev/riam, opinion. without Court affirmed Terry adjudged juvenile delinquent on March was Edward by petition. 1969, proceedings 27, initiated The evidence tended Guard, happened Sweeney, of the Park that one Officer show park upon fight in and that when he ordered the combatants fight up, hit him fists the observers two of break injured. Sweeney apparently not Later that was a stick. and with boys day Sweeney had the two attacked him. who saw same they Apparently Sweeney halt, Sweeney did. them to ordered neck, escaped away. Terry grabbed but he and ran about then and, Sweeney Terry again day after a the street saw nest The Sweeney Terry beat chase, caught testified that him. arrested the arrest. time of him at January 20, At time 1969. Terry’s called on first case'was Terry trial and he wished to have a indicated for counsel finally hearing held on March was continued. matter Terry request for reiterated his time counsel at which *4 delinquent Terry a found to be was trial, was denied. jury Development Center at Cornwells Youth committed and was Heights. (a) ‘delinquent A child who child’ include: 3 “(4) The words any of or ordinance any the Commonwealth law violated has 1933, 2, 1433, P. L. township; Act of June . . .” borough city, §243. 11 P.S.
343 391 U.S. 88 145, S. Ct. 1444 (1968), gives them the to insist on a trial. We cannot agree.
For over sixty-five years the Supreme Court gave no consideration at all to the constitutional problems involved in the juvenile court area.4 Then came the landmark in In decision re Gault5 The decision is somewhat of a both paradox, being broad and narrow the same time. It is broad in that it evidences funda- mental and far-reaching disillusionment an- with the “ ticipated benefits the juvenile court system: [T]he motives highest and most enlightened impulses led to a peculiar for unknown to our juveniles, law any comparable context. The constitutional and theo- retical basis for this peculiar system is—to say least—debatable. And in as we remarked in practice, Kent ease, the results have supra, not been en- tirely satisfactory. Juvenile Court has history again demonstrated that unbridled however discretion, be- nevolently motivated, poor frequently substitute procedure. . . The principle . absence of sub- stantive has standards not necessarily meant that chil- dren careful, compassionate, receive individualized procedural treatment. The absence of based upon rules constitutional has principle produced not always fair, procedures. and effective efficient, Departures of due have established re- principles frequently 4 Illinois, original quickly “The court act a model state, every approved governor in almost was tibe followed 21, Supreme April 21, 1899. Until March Illinois upon legality proce- passed had never Court juveniles.” practices respecting Paulsen, police v. Kent or of dures Cases, Context Juvenile States: The Constitutional United (1966). Review Court (fault States, presaged v. United Kent although (1966), narrow issue involved Kent Ct. 1045 86 S. requirements for a valid waiver of the the nature of concerned jurisdic- District Columbia’s “exclusive Court .Tuvenile tion.”
344 in
suited not arbitrari- enlightened procedure, but ness.”6 to a broad the Court
Continuing paint with brush, announced its intention to require courts function with “the and procedural regularity ”7 phrase process.’ exercise of care ‘due implied At the Court narrowed the focus point, however, holding its decision and from earlier quoted Kent, its “ indicate that saying: do not mean ... ‘We all of the require- to be held must conform with hearing ments of a criminal trial or of the usual even adminis- do hold hearing trative but we must hearing; fair process to the essentials of and up measure in conjunction treatment.’ We reiterate this here view, adjudication ‘delinquency,’ the Due Process Clause which requirement part Amendment of our Constitution.”8 the Fourteenth then enumerated four due specifically The Court it applicable pro- held process rights which notice right adequate timely (1) ceedings: counsel; right right (8) of the charges; (2) and cross-examination; (4) to confrontation Additionally, self-incrimination. against privilege declined to rule on specifically of the Court majority 6 17-19, 1428, (1967). Gault, Ct. 1438-39 87 S. In re 387 U.S. 7 27-28, S. Ct. at 1444: 87 U.S. at indispensable primary process is the founda- of law “Due It is the basic and essential term in the freedom. individual tion of compact of the individual and de- defines which social may pro- powers [T]he exercise. ... the state which limits generality from the fashioned of due been have rules cedural for the distillation evaluation instruments best our are conflicting of data life and welter facts of essential proc- present. instruments of due adversary It these methods our emerge possibility that truth will from the enhance ess which conflicting data.” opposing 387 U.S. versions confrontation 20-21, 1439-40. at 87 S. Ct. at 30-31, at citations omitted. 87 S. Ct. two other rights; to a transcript and the appellate review.
As can be seen from the quoted we are language, confronted with a sweeping rationale and a carefully tailored If holding. we had ithe broader only language *6 it would be difficult to resist the conclusion that Supreme Court had concluded that juvenile must courts with all comply of requirements due The process. do holdings seem to a not, however, contemplate large so and our result, task is to right decide whether the to a trial in jury ought operative to be under the of Kent reasoning and Gault under our own of reading the Constitution. that
Appellants argue Supreme Court’s 1968 de- in cision Duncan v. 391 88 S. Ct. Louisiana, 1444 is useful in the for (1968), quest a determination included in what to be the bundle of ought proc- ess in applicable properly courts. The Supreme Court there held that the “Fourteenth Amend- ment guarantees right a trial in all jury criminal which—were to be in cases tried a they federal court— would come within Sixth Amendment’s guarantee.”9 in spoke the Court Again, sweeping language, calling right to trial to our by jury fundamental system and installed a trial justice, as one Bill of those which is protections Rights fully a on restraint state conduct. applicable language But Duncan also contained which indicates ruling controlling that is here. necessarily proper standards “incorpora- discussion a new Court indicated that standard had been tion,” No longer in recent cases. was the operating inquiry whether some civilized system justice to focus utilization of without a particular be constructed could that state Realizing every union safeguard. S. Ct. at 1447. U.S. at Anglo- operated highly under similar versions system, American common the Court declared that law particular incorporation appropriate was whenever procedure legal sys- of a was fundamental to this kind procedure necessary tem—“whether, is, ordered'Miberty.”10 Anglo-American regime of protections Bill of Court then enumerated those recently applicable Rights to the been made which had might be said that of each “it and concluded states, question necessarily funda- is not that the limitation might every criminal mental to fairness imagined in the context but is fundamental processes by the American maintained criminal specifically Referring to trial States.”11 jury, a “criminal the Court stated juries easy to equitable but used no fair and guarantees imagine. It make alternative would use purposes protections which would serve *7 English system.”12 American in the the serves on the stated restriction In to the above addition nar- must also consider the of we Duncan, absolutism remembering holdings, portions of Gault’s rower specifically apply the refused to Court the procedural safeguards process totality to due Keeping juvenile in we mind, these restrictions courts. right by jury a trial the to determine whether can now juvenile context of our courts, is “fundamental” meaning of Duncan. the within recog- question, seeking we must to answer procedural safeguards due the nize that applicable to courts specifically made Gault significant do- already “constitutional a caused have proceedings. right of mestication” 14). (footnote 10 150, 1448 at 88 S. Ct. at U.S. 391 11 Id. 12Id.
347 to adequate and timely notice, right to counsel, of right confrontation and and the cross-examination, privilege against self-incrimination to serve eliminate much of the of danger arbitrariness. we are Further, confident juveniles also enjoy to have a transcript hearing, appellate re- view,13 and the right to be declared delinquent only upon evidence which demonstrates upon facts which the declaration is made are true beyond a rea- sonable doubt.14 Together these rights insure juvenile court will operate in an atmosphere which is orderly enough impress to the juvenile with the gravity the situation and the impartiality tribunal15 and at the same time informal enough permit benefits the juvenile system operate. 13 2, 1933, 1433, Act of June P. 11 L. P.S. §257. safeguard proof beyond “. . . The constitutional rea required during adjudicatory stage sonable doubt much is as delinquency proceeding safeguards ap as are those constitutional plied charges, right counsel, Gault—notice of of con examination, privilege against frontation and and the self-incrimina Winship, Term, (Supreme tion.” In re No. October Court States, 31, 1970). of the United filed March suggest appearance “[R]ecent studies . . . that the as well as actuality fairness, impartiality short, and orderliness—in process—may impressive essentials of be a more and more therapeutic far concerned.” attitude so 87 S. at 1443. Ct. “[Tjhere making. Informal another observation worth meth- kindness, relying expertise, accept- ods and discretion are most nearly everyone community If of trust. able contexts shares generally prevailing goals, institutions, and in a common faith protect against designed safeguards will not abuse seem so im- portant. not the situation in the [But] . . . this is crisis-ridden *8 community deep. today. in the urban . . . Divisions are cities of may dispel procedure, extent be able to mistrust. to some Formal specific regarding supplied judge with rules the funda- who is A may and who follows them lessen the tensions fairness mentals of adversary respondents feel. The that both he and dispossessed give many to sow discord does a machine see as
348 right proper inquiry,
The is whether the then, meaning by jury trial “fundamental” within the op- juvenile in the context court which Duncan, safeguards. all erates of the above constitutional Supreme Since the Court felt that the “funda- process, mental” in the context of normal criminal operates safeguards, which also with all of these it is upon inquiry our the answer to our view turns juvenile process whether there are which elements render the a trial essential to less juvenile' system protection of an in accused’s process, than not in the normal criminal therefore required. constitutionally so “fundamental” to be juve- do We believe that inhere such factors system. judges in the nile we believe First, role courts take a their do different view counterparts their the criminal than that taken quality fully realize that this faith courts.16 We entirely satisfactory sub- bench is not an rely certainly process, do not for due and we stitute subjective heavily essentially but on factor; on ignore such considera- other hand not choose to we do deprive weight. of all them and will not tions, juvenile system and utilizes has available Second, fully diagnostic much more various rehabilitative experts nearly although are so And services. provide they might hope, still as one numerous designed specially aid courts with services superior to those available are far minors, may heard, place voice, offer a sense of to be a time and may respondents decision-mating affect participation in the badly may provide adversary system Ironically, some mightily. Paulsen, unity.” preservation Constitu- glue for the needed Court, Re- Court Juvenile Domestication tional (1967). 233, 242-43 view Superior Johnson, Pa. generally See Commonwealth v. (1967). A. 92d Ct. *9 regular process. opportunities criminal It is the progress offered this area which constitute the
single preserving juvenile best reason for system. Properly operated, juvenile system capable giv- is ing understanding sympathetic and treatment for each juvenile by providing the correctional, rehabilitative and appropriate instructional attention to each case. Hav- ing recognized the approach, value of this it is indeed regrettable inadequately that it is as utilized as it is. In this any area more than in it is the false other, today economies exponentially which will contribute waste tomorrow. Yet a little bit of wisdom is better aspect than and none, the end seewe juvenile system, though may underused it con- be, stituting very strengths. one of its real recognize we must
Third, end result of a delinquency declaration significantly different from finding guilt. less onerous than a of criminal public adjudication,17 There nois record of the and its subsequent legal proceed- results are not admissible ings. None of the disabilities which follow criminal adjudicated delinquent,18 conviction attach to an importantly, juveniles most the institutions to which something jails, are committed are than less for there greater emphasis a on rehabilitation. We do not say post-adjudication process mean to has up expectations. many respects lived It has fallen goals, reality far short of its its is far harsher than theory. yet its But we are convinced that the cur- tive of the be but shall courts, other kept persons “The records of the be person, shall a docket open having be withheld institution, inspection by separate legitimate proceedings of from indiscriminate association or from interest.” Act of all parent other society or other proceedings public inspection, concerned, June courts shall representa- 2, of such 1933, 1433, §245. 11 P.S. L. P. 1433, §261. P. L. 11 P.S. Act of June practices rent do not contain the seeds which truly appropriate system brought can be forth. possible
Finally, note that all the we applied could be courts, likely to trial is the one which would most unique juvenile proc- disruptive nature of the process rights Utilization of the other due in 'the ess. require judge to courts will not abandon *10 hearing practices; the can conducted traditional still be patience flexibility some and and with with understand- jury ing. by replacing the A on the other hand, trial, require judge probably the as finder would sub- fact, practices. Faced alteration traditional stantial necessity refereeing a contest between with the juvenile deprived one and the state and of its citizens, juvenile power final the the arbiter, judge necessity much have to concern himself would proper procedure, and more the technicalities of with guide vastly capacity to and reduced would have procedural hearings. the mold It is our view that applicable held we have which juveniles protection, give and will sufficient right an a trial need to add element, there is no destroy might by jury, the traditional char- well juvenile proceedings. acter by are confident time, obvious this we As must be juve- fairly properly administered that a structured present needs our societal can serve nile court infringing individual freedoms.19 It is without by power granted V, Court, it Article Section under This authority Constitution, Pennsylvania to formu has the 10(c) of the juve practice, procedure conduct of the governing rules late authority be can and will This in this Commonwealth. nile courts necessary to that action is indicate circumstances whenever utilized juvenile proceedings, constitutionality and fairness maintain formulating, currently for submis committee we note covering comprehensive Court, rules a set of to this sion proceedings. anything
confidence as much which, as led has else, today. us to the conclusion we reach Until such a time potential as we are disabused of our belief that the growth juvenile system inherent will not be ignored, we hold that the in this Com- courts proce- if conducted in accordance monwealth, safeguards dural opinion, set in this forth are not con- compelled stitutionally grant constituency their right by jury. to a trial
Orders affirmed. Dissenting Opinion Mb. Justice Cohen: Sixth Amendment Con United States prosecutions, stitution “In states all criminal the ac enjoy right speedy public cused shall to a trial, impartial jury of the State and district wherein the crime shall have been committed. . . .” Duncan (1968), v. United Louisiana, States Court held that “the trial in serious criminal cases is a fundamental recognized by part hence must States *11 process obligation per their to extend due of to all law jurisdiction.” majority recog their The sons within principles nizes but finds that four these factors inhere juvenile system in which “render the the to a trial protection by jury essential to the less of an accused’s process, in . the normal . . than criminal constitutionally not so ‘fundamental’ as therefore (1) required.” are These the different elements view by juvenile judges in of role taken the their courts counterparts opposed in to their the criminal courts, availability juve (2) to and the utilization the the diagnostic system and rehabilitative of various serv nile (3) end result of different a declaration the of ices, finding compared delinquency a of guilt, with criminal unique disruption juve- of (4) nature the the (that nile result from the process would introduction trials. jury majority
The believes that the exist- apparently process ence of factors that of law these means due not are denied a trial juveniles they jury is denied when that exception thus court is system I can- Duncan. rule enunciated general First, 14 in Duncan not that footnote agree majority restriction opinion a anything represents else In that on absolutism its holding. footnote, IT.®, incorporation that the Court stated 149-50, par- kind of system “given whenever proper that procedure is, ticular fundamental—whether, to an Anglo-American regime procedure necessary could Court then stated that it ordered The liberty.” criminal equitable fair and system easily imagine that such a and remarked system no juries that used pro- guarantees make use alternative “would the jury would purposes serve tections That systems.” and American in the English serves holding Duncan; in no narrows sense statement role the it amplifies by emphasizing if it anything, of juris- Anglo-American system plays jury clearly proposition stands Duncan prudence. pro- requires law states that the all criminal cases. serious trials vide opin- in the Duncan nothing Having determined absolutism its from the holding, detracts ion itself four elements the ma- examine necessary it is system distinguish believes jority if are they to see legally court criminal and/or itself majority states relevant. constitutionally the first factor view heavily (the rely it does judges), taken role their *12 in the recent case Court, of Supreme- States United (1970) (holding U.S. Winship, re In constitutional standard of beyond a reasonable proof doubt is required during of adjudicatory stage delinquency stated, 397 proceeding), 365-66, made clear in that decision “[w]e civil [Gault] labels and good intentions do not themselves obviate for criminal need due process safeguards juve- nile courts. . .
As to the to and availability utilization by juve- nile system of diagnostic various and rehabilitative serv- (factor ices this seems relevant 2), the post-adju- or dicative dispositional process rather than to the adjudicative stage. Certainly process which one is adjudged a has little to do delinquent with the under- standing treatment sympathetic the juvenile sys- tem is capable of giving through correctional, rehabili- tative and instructional attention. What is done with an individual after it is determined he is a delinquent is a different very problem from that concerning the by which it is decided that ishe a delinquent. third majority’s element is the different re- end sult a declaration delinquency compared to a find- of criminal This no ing guilt. includes public record of adjudication, inadmissibility results legal subsequent proceedings, nonimposition disabilities follow a criminal and the conviction, juveniles fact that institutions are “something less jails.” WinsMp, than the United however, States stated, Court U.S. at 365: do not “We convincing contrary arguments find the New (¡fault York Appeals, Court rendered untenable relied upon of the reasoning much that court constitutionality §744(b). The Court of sustain adjudication indicated ‘is delinquency Appeals it (§781) ; no “conviction” affects not a including public hold office or privilege, and a cloak (§782); license protective obtain *13 is thrown around all confidentiality the proceedings (§§783-784).’” light I feel third the this, element is constitutionally irrelevant.
The final element the is of the disruption unique process nature of the which would allegedly occur introduction of trial There with the jury. seems little doubt the introduction of jury trials concerning the himself with judge’s would necessitate to a the technicalities of ex- proper procedure greater reduce required tent than now and would somewhat It hearing. of the informality would flexibility aspects juve- the beneficial however, seem, but adjudicatory stage nile not system result in. post-adjudicative stages pre- rather from the accom- can be some rehabilitation which, hopefully, informality to how the It is difficult see plished. much effect on mold- can have flexibility hearing his conduct will be outlook so that juvenile’s ing rules has established. society conformity with : not ends in themselves are Informality flexibility determine stage the adjudicatory purpose loss and as some delinquent, the defendant whether ef- not a great will have and flexibility of informality can system rehabilitation on whatever fect not the “tradi- an alteration of I do see accomplish, weighty as so juvenile proceedings” character tional trial less funda- to a render a factor as in the ordinary than juvenile system mental process. criminal elements on feel that I do
Therefore, validity relevance and of such relies are majority from the criminal system distinguish toas of Bun- holding the broad malee thus inapplicable. can re- of two minds with to be today appear
Courts The United States of juveniles. spect Supreme Court decisions Gault and Winship make clear that the essentials of due process fair treat- ment must be applied adjudicatory of de- stage linquency but in proceedings, Winship Court was careful out point its holding would not destroy the beneficial aspects juvenile process. Thus, and parens have patriae come into direct conflict. Such conflict can be seen in the decisions of this Court. For opinion example, majority *14 Wilson Pa. 264 A. Appeal, 2d 614 (1970), emphasizes constitutional while requirements the tone opinion in majority action feel- this reflects the ing juveniles tire are different somehow and special and that the beneficial aspects process will be destroyed application of too many given adults. trend of the United States Court decisions, appears be away parens however, patriae in the adjudicatory stage, to trial by jury is part of essential process. adjudicatory I do see valid reasons Duncan why should not apply juvenile court system. as the United
Finally,
States Supreme Court has
in In
granted certiorari
re Burrus,